Legal thoughts, since 2005.

This week's Legal Currents column, which is published in The Daily Record, is entitled "Lawyer Advertising--The Great Debate." The article is set forth in full below, and a pdf of the article can be found here.

Attorneys win cases by successfully selling
their client’s position to a judge or jury.

Of course, it’s somewhat difficult to advocate on behalf of
a client if you don’t have one in the first place. That’s where
lawyer advertising comes in.

In recent years, lawyers have utilized television, radio,
print and the Internet to advertise their services. Some of
their campaigns have been, in the eyes of many, less than
tasteful. Other pervasive and quite successful advertising
campaigns, while arguably less offensive, have nevertheless
been viewed as problematic by some members of the bar.

As a result, in July 2006, revisions to the disciplinary rules
governing lawyer advertising in New York were proposed.
After an extended comment period, revised rules were
enacted in February that severely limited lawyers’ ability to
advertise their services in our state. Reactions were mixed,
with a number of bar associations supporting the new rules
and a handful of lawyers’ associations and some Downstate
bar associations opposing the rules.

Shortly after the new rules were enacted, a federal lawsuit
challenging certain provisions of the rules was filed with the
U.S. District Court for the Northern District of New York on
behalf of Public Citizen, a public interest group and an
Upstate New York law firm, Alexander and Catalano, LLC.

Last week, Judge Scullin issued a decision in that case
enjoining the enforcement of certain provisions of the new rules and declaring them to be unconstitutional, including
the ban on endorsements/testimonials from current clients
[DR 2-101(C)(1)], the portrayal in advertise-
ments of judges, fictitious law firms and ficti-
tious names [DR 2-101(C)(3)], the use of tech-
niques irrelevant to selection of an attorney [DR
2-101(C)(5)], the use of nicknames, monikers or
mottos that imply an ability to achieve results
[DR 2-101(C)(7)] and the ban on the use of pop-
up ads on the Internet [DR 2-102(G)(1)].

Judge Scullin likewise upheld the constitutionality of other challenged provisions, including those that established domain name limita-
tions for Web sites [DR 2-103(G)] and the
moratoriums on contacting victims [DR 2-
102(E)] and [DR 7-111].

His ruling also clarified that the new rules did not apply
to non-commercial communications such as those made by
non-profit legal organizations such as the plaintiff, Public
Citizen.

In footnote 20 of his decision, Judge Scullin adeptly summarized the sentiments of many regarding the vexing issue
of attorney advertising: “(T)he court notes that it is altogether appropriate for the Appellate Division of the State of
New York, having been charged by law with the responsibility of overseeing the professional conduct of attorneys
admitted to practice before the courts of New York, to be
concerned with the issue of attorney advertising. Without
question there has been a proliferation of tasteless, and at
times obnoxious, methods of attorney advertising in recent
years. New technology and an increase in the types of
media available for advertising have exacerbated this prob-
lem and made it more ubiquitous. As a result, among other
things, the public perception of the legal profession has been
greatly diminished. Although the court finds it commendable that the Appellate Division of the State of New York
and the disciplinary committees that function on its behalf
pursue ways to regulate the manner and means by which
attorneys who choose to advertise may do so, they must be
mindful of the protections such advertising has been
afforded and take the necessary steps to see that the regulation of such advertising is accomplished in a manner con-
sistent with established First Amendment jurisprudence.”

Alas, Judge Scullin’s word on this issue is not destined to
be the last. The state recently announced its intention to file
an appeal with the U.S. Court of Appeals for the Second Circuit.

And so the great debate rages on: To what extent should
attorney advertising be regulated?

Realistically, who benefits from limitations on attorney advertising? Legal consumers? Other lawyers? Who should
be charged with determining which attorney ads are detri-
mental to the profession when the concept of “tasteless,”
much like pornography, is in the eye of the beholder?
Should disciplinary rules be imposed that allow attorneys to
utilize their finely honed advocacy skills for the benefit of
all businesses but their own? Should the First Amendment
serve as a shield that permits lawyers to advertise in a way
many feel demeans the profession?

There is one thing upon which we, as lawyers, can all
agree: These are complex questions that defy simplistic
answers. For this reason, a consensus among members of
our profession is likely to elude us indefinitely. It doesn’t
take a salesman to convince me of that.

n. an unforeseen uncontrollable event which occurs after a written or oral contract is entered into between parties, and makes it impossible for one of the parties to fulfill his/her duties under the contract. This circumstance allows the frustrated party to rescind the contract without penalty. Such frustration (called frustration of purpose) could include the destruction by fire of the goods to be purchased, the denial of a permit to construct a building by a potential buyer, or denial of an application for a zoning variance to allow expansion by a contractor.

The dust is now settling a bit since Judge Scullin handed down his decision last week which declared a number of the recently enacted New York lawyer advertising rules unconstitutional and enjoined their enforcement. If you haven't already seen it, the court's decision can be found here.

Just as I predicted, the State has announced its intention to appeal to the Second Circuit Court of Appeals, as reported by Eric Turkewitz at the New York Personal Law Blog and in this New York Lawyer article.

And, the New York Law Journal offers an extensive analysis of the issues involved in this article, which also includes quotes from many of the relevant players.

On July 24th, the New York State Bar Association issued a statement regarding the decision, which can be found here. From that statement:

“Our Task Force on Lawyer Advertising began its work two years ago to address the dual concerns of protecting the public from false or misleading advertising or solicitation by attorneys while recognizing the legitimate interests of lawyers in informing the public about legal services. We are gratified that the Court has recognized this balance of interests and we are in agreement with the Court's decision, which in many areas referenced the analysis provided by our Task Force. Going forward, we welcome the opportunity to work with the Appellate Divisions to review and develop rules that strike an appropriate balance within the constitutional framework.”

Kathryn Grant Madigan, the current president of the NYSBA offers more insight here, including a summary of the rules upheld and those which were declared unconstitutional:

The following provisions of the Disciplinary Rules have been held unconstitutional, and the grievance committees are enjoined from enforcing them:

It would seem from this AP headline that our illustrious law enforcement officers have once snatched another dangerous, home-grown "terrorist" right off the streets: College student accused of terror threat.

According to the article:

He allegedly sold a fully automatic M-16 assault rifle he never owned. And a court document says he was seen walking around campus wearing a bullet-resistant vest in May....Police said they found a handwritten note inside his car threatening a "murderous rampage" similar to the one at Virginia Tech that left 32 people and the gunman dead...At the time of Oduwole's arrest, federal authorities had been investigating a gun dealer's concerns that Oduwole seemed overly eager to receive guns he had purchased online.

Oh my! This kid sounds downright scary, doesn't he?

Thanks to the hard work of law enforcement, it would seem that another awful school shooting has been prevented! Hallelujah!

Or, maybe the whole thing was blown out of proportion by overzealous cops? Naaaah. That never happens, right?

Wrong.

From what I can glean from the above article and this Chicago Tribune article, Mr. Olutosin Oduwole was screwed over badly--and then some. Currently he's charged with Attempting to Make a Terrorist threat and unrelated fraud charges and is being held on $1.1 million in bail.

So, how did all this come about? Well, it seems that Mr. Oduwele, a black college student and president of his fraternity, legally ordered guns from a gun dealer, but seemed "over eager" to receive them. So, the gun dealer notified federal authorities. And the fishing expidition investigation thus commenced.

After an initial investigation the Bureau of Tobacco, Alcohol and Firearms discovered that a report was pending with local police regarding a fraudulent online auction transaction that Mr. Oduwele was involved in. It seems that he sold an M-16 that he didn't actually own, and deposited the money, approximately $1000, into his bank account. The buyer was understandably upset when he didn't receive his gun, so he called the cops.

Assuming that the facts allaged are true, clearly, Mr. Oduwele engaged in some sort of fraud/theft. But, that's a far cry from "terrorism", isn't it? The "evidence" discovered shortly thereafter, which "support" the charges against him regarding alleged acts of terrorism are, in my humble opinion, built on a house of cards, at best.

After he was arrested for the theft, for some reason the police impounded his abandoned car that was located on university property. In that car--his car, mind you--they foound a scrap of paper on the front seat. Rap lyrics were written on one side and on the other side they found "a handwritten note demanding payment to a PayPal account, threatening that 'if this account doesn't reach $50,000 in the next 7 days then a murderous rampage similar to the VT shooting will occur at another highly populated university. THIS IS NOT A JOKE!'"

Mind you, this note was found in his abandoned car. He hadn't given it to anyone. He hadn't left it laying around on a table at the library. He hadn't mailed it to anyone. It wasn't a copy of an email that he'd sent. It was simply a scrap of paper with lyrics on one side and this ridiculous note on the other.

The cops then searched his campus apartment and located a loaded gun. But, wait! There's even more evidence that he intended to bomb his school--the cops found a photo of him flashing gang signs! Yes, it's true!

If anyone's guilty of planning acts of terror, it's this kid. He sold a gun he didn't own, he scribbled a threat on a scrap of paper and had the audacity to leave it on the front seat of his car, he legally purchased guns and was "eager" to receive them, and he legally owned a gun which he kept in his campus apartment. And his worst offense? He flashed "gang signs." I say we lock him up and throw away the key! How about it?

For a summary of the "proof" against him gleaned from the court affidavit of an investigator, see this Newsday article.

n. 1) the act of placing property in the custody and control of another, usually by agreement in which the holder (bailee) is responsible for the safekeeping and return of the property. Examples: bonds left with the bank, autos parked in a garage, animals lodged with a kennel, or a storage facility (as long as the goods can be moved and are under the control of the custodian). While most are "bailments for hire" in which the custodian (bailee) is paid, there is also "constructive bailment" when the circumstances create an obligation upon the custodian to protect the goods, and "gratuitous bailment" in which there is no payment, but the bailee is still responsible, such as when a finder of a lost diamond ring places it with a custodian pending finding the owner. 2) the goods themselves which are held by a bailee. Thus, the "bailor" (owner) leaves the "bailment" (goods) with the "bailee" (custodian), and the entire transaction is a "bailment."See also: bailee bailor.

This week's Legal Currents column, which is published in The Daily Record, is entitled "The Reality of Legal Fictions?" The article is set forth in full below, and a pdf of the article can be found here.

In a recent U.S. Supreme Court decision,
Brendlin v. California, no. 06-8120, the court
reiterated a popular legal fiction that serves
as the basis for our Fourth Amendment jurisprudence:
A person is not seized for Fourth Amendment
purposes unless a reasonable person in
their position would not feel free to terminate the
encounter with police officers.

At issue in Brendlin was whether the passenger of a vehicle
that was stopped by police is seized and, therefore, has standing
to challenge the constitutionality of the stop.

The court held that the passenger is seized as long as: “(A)
reasonable person in (the passenger’s) position when the car
(was) stopped would have believed himself free to ‘terminate
the encounter’ between the police and himself. ...We think that
in these circumstances any reasonable passenger would have
understood the police officers to be exercising control to the
point that no one in the car was free to depart without police
permission.”

The court explained that: “If the likely wrongdoing is not
the driving, the passenger will reasonably feel subject to suspicion
owing to close association; but even when the wrongdoing
is only bad driving, the passenger will expect to be subject
to some scrutiny, and his attempt to leave the scene would
be so obviously likely to prompt an objection from the officer
that no passenger would feel free to leave in the first place.”

The rationale behind the court’s conclusion is sound, and
seems to imply that any time a vehicle is detained by police,
all occupants are effectively seized.

In fact, footnote 6 indicates otherwise: “[T]he relationship
between a driver and passenger is not the same in a common
carrier as it is in a private vehicle, and the expectations
of police officers and passengers differ
accordingly. In those cases, as here, the crucial
question would be whether a reasonable person
in the passenger’s position would feel free to take
steps to terminate the encounter.”

In other words, if you happen to be a passenger
in a taxi, maybe you’re seized — maybe you’re
not. A nice judge will be kind enough to let you
know years after the fact.

The oft-repeated judicial assertion that, under
certain circumstances, a “reasonable” citizen is
free to terminate an encounter with a police officer,
is the epitome of legal fiction at its best.

In theory, it’s certainly possible to politely
advise an officer that as much as you’d like to engage in small
talk, you’re running late for an appointment and really must
be on your way. After perusing a few Supreme Court decisions,
an unsuspecting foreigner might assume this sort of
thing happens all the time in our country, since most judicial
opinions seem to imply that we live in a Pollyanna-like reality
where reasonable, law abiding citizens routinely exercise their
constitutional right to walk away from kind and understanding
police officers without ramifications of any sort.

Reality, as all reasonable citizens know, is a completely different
story. If an officer stops you and you choose to politely
exercise your constitutional right to refuse to respond to any
inquiries, it’s all too likely you’ll soon find yourself handcuffed,
face down in the gravel and charged with disorderly
conduct, obstructing governmental administration and resisting
arrest.

I would argue that your constitutional right to terminate a
police encounter is a legal fiction, at best, and one I would recommend
exercising at your own risk. Should you choose to do
so, make sure you’ve got a good criminal defense attorney
lined up, since you may very well find reality has an annoying tendency to trump legal fiction.

********

And, a video showing why cops scare me. A cop's mistaken belief, a bit of stereotyping and a lot of power result in a a really bad day for an innocent young girl who's just doing her minimum wage job and who tries to keep up her bravado and hide her fear when the situation takes an unexpected turn for the worse.

For me, the saddest part of the video is that the poor girl keeps telling the cop that her mom is on the way--like that's going to make a difference. But, she's young enough and a bit mouthy, but not all that street savvy, so she still thinks that her mom will save her from this out of control cop.

After watching it, let me know--what do you think? Is the $60,000 is sufficient compensation for what happened?

(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client
with respect to a matter still pending;

(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of
a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply
that lawyers are associated in a law firm if that is not the case;

(5) rely on techniques to obtain attention that demonstrate a clear and intentional
lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting
characteristics clearly unrelated to legal competence;

(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain
results in a matter.

1200.6(g)(1): (g) A lawyer or law firm shall not utilize:

(1) a pop-up or pop-under advertisement in connection with computer-accessed
communications, other than on the lawyer or law firm’s own web site or other internet
presence...

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